McAlpine v. Bercow and a New Era of ‘Twitter Chill’

The decision of Mr Justice Tugendhat in McAlpine v Bercow [2013] EWHC 1342 (QB) (24 May 2013) [“McAlpine”] is a stern admonition to Twitter users about the perils of practising comedy without a license.

Seriously, in my view, the UK court’s judgment will have a chilling effect on free speech on Twitter and will likely devolve into an era of social media self-censorship for Twitter users, particularly in the UK. A form of libel chill, or, perhaps “Twitter Chill”.

It also highlights the legal chasm that exists between the American and UK judicial approaches to balancing freedom of expression and protecting reputation. The decision also raises the spectre of a “popularity metric” to determine whether the alleged maker or republisher of the defamatory tweet has gazillions of followers or is just some shlub with 4 followers, three of which are porn bots.

There are stories circulating on various blogs and on Twitter referring to similar, if not identical, allegations made against Lord McAlpine back in the 90’s by a now defunct British magazine and a well-known British writer and public speaker with a penchant for conspiracy theories. [note: I am deliberately not providing links to the articles in fairness to my UK readers. If you really want to know more, then Google it yourself].

Some have asked, perhaps rhetorically, why Lord McAlpine did not sue anyone before when these allegations, now established to be false, were made?

My question is: Does failing to sue when a libel is first published raise a defence of waiver, estoppel or acquiescence? “

Reading Mr. Justice Tugendhut’s decision, it is obvious no one bothered to address my brilliant insights.

In any event, the upshot of the McAlpine decision is that innuendo is sufficient to attract liability for defamatory statements, even where the individual does not link or endorse the original source of the defamatory statements.

In this case, Tugendhut J. found that many of Bercow’s Twitter followers shared her interest in current affairs and would have been familiar with the Newsnight story.

The learned judge further held that Bercow’s inclusion of the phrase *innocent face* told readers that she was being “insincere and ironical”; she was not asking a simple question as argued by her counsel. Accordingly, the UK court held that it was reasonable to infer that she meant Lord McAlpine was “trending because he fits the description of the unnamed abuser”.

Therefore, by process of implication, there was repetition of the accusations of sexual abuse broadcast on Newsnight. Following the UK’s ”repetition rule”, Bercow, admittedly a celebrity of some sort, is to be treated as if she had made the original allegations herself, but with the addition of Lord McAlpine’s name.

Aye, there’s the rub which rubs me the wrong way.

With all due respect, the learned judge’s logic is tortuous. It attempts to connect dots on a map to a treasure buried under a sea of improbability.

Tugendhut J. surmises,

84. In my judgment the reasonable reader would understand the words “innocent face” as being insincere and ironical. There is no sensible reason for including those words in the Tweet if they are to be taken as meaning that the Defendant simply wants to know the answer to a factual question.

Ask yourself this question: what would have happened if Bercow did not add the phrase “innocent face”?

Frankly, I’ve been on Twitter for over 4 years and I never got the “facial innocence” memo and would not have made the connection. That said, the following sums up the UK court’s analysis :

***1. Newspaper incorrectly identifies a public figure as a pedophile ;

2. Thousands of individuals post links to the story on blogs, Twitter and who knows where else;

3. The public figure’s name starts trending on Twitter (presumably in the UK only, but for argument’s sake, let’s say it trends worldwide);

4. Thousands of private individuals, many anonymous, follow a celebrity and see his or her tweets and are compelled to follow the trail of bread crumbs. Actually, all they have to do is to do a search of the Twitter hashtag;

5. Since the celebrity’s Twitter reach is extensive due to a large number of followers, the result is that the celebrity is liable for republication of the libel.

Does anyone else see the gap in logic here? Whether Bercow has 65,000 followers or 6,500,000 or only 6 followers does not proveanyone actually read her tweets or further investigated the story.

Bercow did not say: “Lord McAlpine is a pedophile”, which is, of course, a falsehood and unequivocally defamatory.

She also did not say: “Dear Followers, here is a link to the reports of the Newsnight story.”

In a statement, Mrs Bercow responded: “I will accept the ruling as the end of the matter. I remain sorry for the distress I have caused Lord McAlpine and I repeat my apologies.

“I did not tweet this with malice, and I did not intend to libel Lord McAlpine. I was being conversational and mischievous, as was so often my style on Twitter.”

She went on: “I very much regret my tweet, and I promptly apologised publicly and privately to Lord McAlpine for the distress I caused him. I also made two offers of compensation.

“Lord McAlpine issued proceedings and the last few months have been a nightmare. I am sure he has found it as stressful as I have. Litigation is not a pleasant experience for anyone.”

Mrs Bercow said she had learned her lesson “the hard way”, adding that the ruling should be seen as “a warning to all social media users” because comments could sometimes be “held to be seriously defamatory, even when you do not intend them to be defamatory and do not make any express accusation”.

The tort of defamation, a strict liability tort in common law, deals with recovery for reputational harm, without need to prove the defendant’s fault. As such, damages are presumed. It appears that the impugned tweet was not libel per se, but rather libel per quod, which requires extrinsic evidence such as inducement or innuendo.

Ultimately, Bercow’s tweet was ill-advised, but to conclude that anyone who read the tweet was induced into believing what Twitter itself, through its trending algorithm, perceived as “popular” or “informative” or “newsworthy” implies that trending somehow cloaks the content as “true”. Of course, it’s not. It’s just Twitter.

The UK’s piecemeal, haphazard approach to libel reform notwithstanding, unless free speech is constitutionalized to reflect a semblance of the U.S. First Amendment, then many are 140 characters away from an expensive libel claim lawsuit. Oh yeah, I forgot. Britain does not have a written constitution. Nevermind.

Well, how about imposing an actual malice requirement for public officials and public figures? Most are familiar with Supreme Court’s 1964 decision of New York Times v. Sullivan, 376 U.S. 254 (1964), which held that a public official could only prevail in a defamation action if the public official proves that the defendant either knew that the statement was false or recklessly disregarded whether the communication was false, a fault standard known as “actual malice.” Without constitutional constraints, free speech is an illusion. I sympathize with Lord McAlpine. The false accusation was egregious. However, he has settled with a number of large media outlets and the subsequent coverage has repaired any damage, however, significant, albeit transitory.

In the end, Twitter is ephemeral. If you don’t believe me, just try to search for one of your tweets from a few months ago. Good luck with that. In the meantime, how to best strike a fair balance between freedom of speech and protection of reputation remains elusive. The McAlpine decision adds nothing to the free speech/reputation calculus.

As a postscript, the Birmingham Post reports that Bercow has settled with Lord McAlpine, however, “The amount of damages was not disclosed”.

In the circumstances, a reader who knew the background – the “Newsnight” broadcast, the media reports and Lord McAlpine’s status as a “Conservative politician from the Thatcher years” – might well have inferred that the Tweet meant: “Lord McAlpine is trending on Twitter because he is the child abuser is the subject of the Newsnight report“. In other words, such a reader might well have understood the words as conveying a serious defamatory imputation.

…

It difficult to see how, in this case, a reader of the Tweet who had, for example, paid no attention to the media between 2 and 4 November 2012 could possibly have understood the tweet as making a defamatory allegation against the claimant. The question of the absence of an “alternative explanation” mentioned by the Judge ([85]) cannot assist on this point: the reader who had paid no attention to the media would simply not understand what the tweet was about. It would doubtless come across as another, unfathomable, twitter “in-joke”.”

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